OTTAWA — As observers are looking to a slew of high-profile U.S. lawsuits that could determine if generative AI violates copyright, so is the federal government — which doesn’t know how Canadian copyright law applies to systems like ChatGPT.
A lawsuit by authors including John Grisham, Jodi Picoult and George R.R. Martin launched last month in the United States against OpenAI is only the latest court case alleging generative artificial intelligence systems infringe copyright by using copyrighted works without permission. Other cases involve similar claims by comedian Sarah Silverman, a group of artists, and Getty Images.
In Canada, it’s unclear how the Copyright Act applies to these systems, according to a briefing note from Canadian Heritage obtained through access to information.
“There is no text and data mining-specific exception in the Act, and it is unclear how current exceptions to infringement cover text and data mining activity and the training of AI using unlicensed works,” said the memo prepared for then-heritage minister Pablo Rodriguez in May.
It listed some of the ongoing lawsuits, and said the outcome of those cases “will likely impact the norms for use of text and data mining internationally.”
The emergence of generative AI, following the launch of Open AI’s ChatGPT last fall, has led governments around the world to launch efforts to regulate the technology, which can produce text, audio or video in response to prompts. So for instance, a reader frustrated by the 12-year wait for the next book in the Game of Thrones series could use a system that’s been trained using R.R. Martin’s work to write it.
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Those who are behind copyrighted work object to such use. “Rights holders argue the use of unlicensed copyright-protected works in the training of AI models infringes their copyright, and that regulation is needed,” the briefing note outlined.
It said stakeholders in the creative industries “are asking the government to consider regulating the use of copyrighted works in training artificial intelligence (AI) models and to ensure that rights holders have mechanisms available to enforce their rights.”
On the opposing side are copyright users and technology companies, who argue that using works protected by copyright to train AI systems isn’t an infringement of copyright, the note said. “Many industry stakeholders wanting to promote innovation and technology will oppose any regulation of AI. Instead, they seek clearer exceptions in the Copyright Act to define and expand the permitted uses of copyright-protected materials.”
There is also uncertainty around whether AI-generated content is copyrightable, though it’s “generally understood” a human author is needed, the note said.
“Creative industry stakeholders are likely to ask the government to affirm the human element of copyright authorship, limiting copyright protection to works with sufficient human expressive output, whether or not AI technologies assisted their creation,” it said.
On the other hand, the AI industry is likely to support copyright protection for AI-generated content, which would “allow greater commercialization and protection.”
The partially-redacted document didn’t include any details about what actions the government might take in response. A spokesperson for Canadian Heritage said the government “continues to analyze copyright policy issues related to AI considering the evolution of the marketplace, reforms in other jurisdictions, and discussions with stakeholders.”
The Liberals held a consultation looking at the issue of artificial intelligence and copyright in 2021. But the briefing note pointed out the technology has significantly advanced since then and more consultation may be needed.
The Canadian Heritage spokesperson said given the “rapid evolution of the marketplace, the government is actively considering the appropriate next steps, including building on, and updating the conversation with stakeholders, which was initiated through the 2021 public consultation.”
The Liberal government recently finalized a voluntary code of conduct for generative AI systems, and has proposed new rules for “high-impact” AI systems through Bill C-27, though neither of those initiatives deal with questions around copyright.
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